Under the Family and Medical Leave Act (FMLA) eligible employees of covered employers (i.e., those employers with 50 or more employees within 75 miles of an employer’s worksite) are entitled to unpaid, job-protected leave for specific family and medical reasons for up to 12 workweeks, in a 12-month period.  In addition to leave for family and medical reasons, the FMLA also provides for leave due to certain family military situations.  During FMLA leave, employers are required to provide continuing group health insurance benefits for the employee under the same terms and conditions as if the employee had not taken leave.  An employee timely returning from leave must be restored to their original job or to a comparable job with comparable pay, benefits and any other additional terms and/or conditions of employment.

Covered employers, under FMLA regulation 29 C.F.R. §825.300, are required to post a copy of an FMLA “general notice” in every location where the employer has any employees, whether there are FMLA-eligible employees at the location or not.  While the notice can be either physical or electronic, it must be displayed “prominently where it can be readily seen by employees and applicants for employment.”  Additionally, a covered employer, that has any eligible employees at any location, must also provide each employee with the general notice by including it in their employee handbook or any other written guidelines outlining employee benefits or leave rights.  In the event that such written materials do not exist, the employer must distribute the general notice, either in print or electronically, to each new employee upon hire.

For some years now, the U.S. Department of Labor (DOL) has supplied a poster on its website that meets the foregoing “general notice” requirement. However, in April 2016, the DOL issued a new “Employee Rights Under the Family and Medical Leave Act” poster, stating on its website:

“All covered employers are required to display and keep displayed a poster prepared by the Department of Labor summarizing the major provisions of The Family and Medical Leave Act (FMLA) and telling employees how to file a complaint. The poster must be displayed in a conspicuous place where employees and applicants for employment can see it. A poster must be displayed at all locations even if there are no eligible employees.

. . .

The February 2013 version of the FMLA poster is still good and can be used to fulfill the posting requirement.”

While the new poster does not change much, it does eliminate some information and present other information in what could be considered a more “reader friendly” format. Specifically, the new poster focuses on the responsibilities of employers under the FMLA, rather than emphasizing the “employee’s responsibilities”.

The new poster also displays the following information more conspicuously than before:

• Employees may file a complaint with the U.S. Department of Labor, Wage and Hour Division, or may bring a private lawsuit against an employer.

• The FMLA does not affect any federal or state law prohibiting discrimination or supersede any state or local law or collective bargaining agreement that provides greater family or medical leave rights.

In line with their increasing exposure over the last several years, the DOL displays their website and telephone numbers much more prominently on the new poster than before, making it easier for employees to contact the DOL with complaints about employment practices.  In light of the emphasis on employee rights, we recommend that employers evaluate their current FMLA policies and procedures and also ensure that they are using the correct FMLA forms.

As mentioned previously, for the present time employers may continue to use the February 2013 version of the poster to meet the general posting requirement, however, one may be hard-pressed to find it as the DOL has replaced it on their website with the new version. If you have any questions about your rights under the FMLA, or have concerns about best employment practices, the lawyers at Faulkner Law Offices, PLLC, with decades of experience in this area, are available to help you.